We have had a great deal of discussion about the controversy over the remarks of Judge Mark Martin of Mechanicsburg, Pennsylvania in the dismissal of a charge against Talaag Elbayomy, a Muslim who attacked an atheist Ernie Perce for insulting the Prophet. Perce was parading as a zombie Mohammad in the Mechanicsburg Halloween parade when Elbayomy allegedly grabbed him. Elbayomy was at the parade with his family. Yet, it was Perce who ultimately came into a tongue lashing from Martin. Martin has now reportedly responded with the message below. I am not sure how much it helps on the merits, but he does clarify a couple of points if this response (which has appeared on several sites) is genuine.
In the hearing over the harassment charge, Martin first dismisses the charge. In the hearing, Martin notes that the evidence of the victim is conflicted and that there is insufficient basis to sustain a criminal charge. While the arresting officer disagreed (and the video seems to show a case of assault rather than harassment), that is the role of a judge as an impartial court. Martin states that he does not believe that the incident occurred as described by Perce without more witnesses coming forward: “All that aside, I’ve got two sides (of a) story that are in conflict with each other. I can’t believe that if there was this kind of conflict going on in the middle of the street and somebody didn’t step forward sooner to try and intervene that the police officer on the bicycle didn’t stop and say, ‘Hey, let’s break this up.’”
Notably, however, Martin says that he didn’t doubt that the incident occurred and the defendant admitted that he acted in response to an insult to Islam. Yet, this is not viewed as sufficient to sustain a harassment charge. Yet, putting aside the merits of the dismissal, it is what followed that concerned many of us — a lecture on Islam and the first amendment. Martin suggests that free speech was not meant to protect conduct like Perce’s. The tape below includes such statements as:
In many other Muslim-speaking countries, err, excuse me, many Arabic-speaking countries, predominantly Muslim, something like this is definitely against the law there, in their society. In fact, it could be punished by death, and frequently is, in their society.
Here in our society, we have a Constitution that gives us many rights, specifically First Amendment rights. It’s unfortunate that some people use the First Amendment to deliberately provoke others. I don’t think that’s what our forefathers intended. I think our forefathers intended to use the First Amendment so we can speak with our mind, not to piss off other people and cultures – which is what you did.
The veiled reference to Sharia law in this context was highly problematic. As I said earlier, those countries are examples not of some loosely fitting cultural defense but oppression and medieval justice. What is particularly disturbing, however, is Martin’s view of the first amendment.
In this statement, Martin denies being a Muslim. The tape appears to show him saying that he is, but he would know. In the end, the judge’s religion should never have been part of the proceeding to start with. Moreover, regardless of his religion, it is his legal views that seem grotesquely out of place.
Martin also denies threatening Perce with arrest for releasing the tape. He admits that he threatened to hold him in contempt and suggests that the controversy is proof that the rule not to publish the tapes is valid. However, while denying the issue about his faith, he does not question whether this is an accurate account of his statements on the first amendment.
This story certainly has legs. As you might imagine, the public is only getting the version of the story put out by the “victim” (the atheist). Many, many gross misrepresentations. Among them: I’m a Muslim, and that’s why I dismissed the harassment charge (Fact: if anyone cares, I’m actually Lutheran, and have been for at least 41 years).
I also supposedly called him and threatened to throw him in jail if he released the tapes he had made in the courtroom without my knowledge/permission (Fact: HE called ME and told me that he was ready to “go public” with the tapes and was wondering what the consequences would be; I advised him again to not disseminate the recording, and that I would consider contempt charges; he then replied that he was “willing to go to jail for (his) 1st amendment rights”- I never even uttered the word “jail” in that conversation).
He said that I kept a copy of the Quran on the bench (fact: I keep a Bible on the bench, but out of respect to people with faiths other than Christianity, I DO have a Quran on the bookcase BESIDE my bench, and am trying to acquire a Torah, Book of Mormon, Book of Confucius and any other artifacts which those with a faith might respect).
He claims that I’m biased towards Islam, apparently because he thinks I’m Muslim. In fact, those of you who know me, know that I’m an Army reservist with 27 years of service towards our country (and still serving). I’ve done one tour in Afghanistan, and two tours in Iraq, and am scheduled to return to Afghanistan for a year this summer. During my first tour in Iraq, I was ambushed once, attacked by a mob once, sniped at once, and rocketed, bombed, and mortared so many times that I honestly don’t know how many time I’ve been attacked. Presumably by Muslim insurgents. My point: if anyone SHOULD be biased towards Muslims, one would think it would be me. I’m not, however, because I personally know or have met many good, decent people who follow Islam, and I shouldn’t characterize the actions of those who tried to kill me as characterizations of all Muslims.
When I asked him why he dressed up as “Muhammad zombie,” he told me that it was because he was reflecting the Muslim belief that Muhammad rose from the dead, walked as a zombie, and then went to heaven. That was one of the reasons I tried to spend 6 whole minutes trying to explain and de-mystify Islam through my own knowledge, and in an attempt to prevent an incident like this recurring in my community. Unfortunately, the message was obviously not received in the vein that I had intended. And, in the interest of full disclosure, I did use the word “doofus,” but didn’t call him that directly; I said something akin to “ if you’re going to mock another religion or culture, you should check your facts, first- otherwise, you’ll look like a doofus.”;
In short, I based my decision on the fact that the Commonwealth failed to prove to me beyond a reasonable doubt that the charge was just; I didn’t doubt that an incident occurred, but I was basically presented only with the victim’s version, the defendant’s version, and a very intact Styrofoam sign that the victim was wearing and claimed that the defendant had used to choke him. There so many inconsistencies, that there was no way that I was going to find the defendant guilty.
A lesson learned here: there’s a very good reason for Rule 112 of Rules of Criminal Procedure- if someone makes an unauthorized recording in a Court not of Record, there’s no way to control how it might be manipulated later, and then passed off as the truth. We’ve received dozens upon dozens of phone calls, faxes, and e-mails. There are literally hundreds of not-so-nice posts all over the internet on at least 4 sites that have carried this story, mainly because I’ve been painted as a Muslim judge who didn’t recuse himself, and who’s trying to introduce Sharia law into Mechanicsburg.
In this case, the release of the tape would seem to have served the interests of justice in that the judge has some highly mistaken views about free speech. This purported statement from the judge does not question the accuracy for those statements on the first amendment. Moreover, with the guarantee of public hearings (limited in relatively rare cases), the public has a right to know about such controversial statements from individuals given judicial power.